Wolff and Holden - [2012] FMCAfam 924

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WOLFF & HOLDEN

[2012] FMCAfam 924

FAMILY LAW – Defacto Relationship – s.90RD declaration as to the end date of the asserted relationship – no jurisdiction – application dismissed.

Family Law Act 1975, ss.4AA, 90RB, 90RD
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008

Baker & Landon [2010] FMCAfam 280
Moby v Schulter [2010] FLC 923-447
Roy v Sturgeon [1986] DFC 95-031
Simonis v Perpetual Trustee Co Ltd [1987] 21 NSWLR 677
Light v Anderson [1992] DFC 95-102
Jonah & White [2011] FamCA 221
Ricci & Jones [2011] FamCAFC 222
Taisha & Peng and Anor [2012] FamCA 385

Applicant:

MS WOLFF

Respondent:

MF HOLDEN

File Number:

SYC 349 of 2012

Judgment of:

Foster FM

Hearing date:

10 August 2012

Date of Last Submission:

10 September 2012

Delivered at:

Sydney

Delivered on:

13 September 2012

REPRESENTATION

Counsel for the Applicant:

Mr Jackson

Solicitors for the Applicant:

Accentro Legal

Counsel for the Respondent:

Mr Cairn

Solicitors for the Respondent:

Phang Legal

ORDERS

That pursuant to s.90RD of the Act the court declares that the defacto relationship between the applicant and respondent ended in January 2006.
That the application filed by the applicant on 24 January 2012 as amended be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Wolff & Holden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 349 of 2012

MS WOLFF

Applicant

And

MF HOLDEN

Respondent

REASONS FOR JUDGMENT

The Proceedings

These are proceedings arising out of an alleged de facto relationship. The applicant de facto wife seeks orders as set out in the amended application filed on 8 June 2012 as to property adjustment and de facto spousal maintenance. Further she seeks interim orders for de facto spousal maintenance and interim property orders and including an order requiring the respondent de facto husband to meet continuing mortgage payments in relation to the property occupied by the applicant in [H] in Sydney.
The respondent de facto husband seeks:
a)declaratory relief to the effect that the parties resided in a de facto relationship between 2002 and 2006, that the applicant did not make any substantial contribution to the acquisition, conservation and improvement of any property subject of these proceedings and that the applicant would not suffer any serious injustice by reason of no property adjustment orders being made in her favour;
b)that the application be dismissed for want of jurisdiction;
c)costs;
d)that otherwise orders sought by the applicant be dismissed.
Proceedings were first listed before the court on 21 March 2012. On that day the matter was adjourned for further directions to 7 May 2012. Further the respondent was ordered to file a response, financial statement and affidavit in support of orders sought by him by 27 April 2012. The applicant was ordered to file any further affidavit material relied upon as to the existence of the relationship sufficient to attract the court’s jurisdiction by 27 April 2012.
On 7 May 2012 proceedings were adjourned for hearing as to the question of jurisdiction to 10 August 2012. The parties were ordered to file any amended application or response and any updating affidavit material to be relied upon by Friday 27 July 2012.
The matter proceeded to hearing as to the question of jurisdiction on 10 August 2012.

Background

The applicant was born in China [in] 1953 and is presently 59 years of age. The applicant had been previously married in China and there is an adult child of that relationship, [X].
The applicant moved to Australia in May 1996 as a visiting [occupation omitted]. From 1997 to 2003 the applicant worked in the Northern Territory.
The respondent was born [in] 1949 that is presently 63 years of age. The respondent is a [omitted] by profession. The respondent was previously married and was divorced in about 2001. He has a son [Y] aged 27.
There are no children of the relationship between the applicant and respondent.
In August 1999 the parties purchased property at [A] in Darwin for the sum of about $155,000. A mortgage of $124,000 was borrowed at the time of purchase. The property was purchased as tenants in common as to 80% to the respondent and 20% to the applicant. The applicant asserts that she contributed some funds to the purchase, paid various outgoings and made periodic payments to the respondent’s bank account over the period from purchase to December 2002. The respondent says that monies paid were rent payments under the arrangement between them.
The applicant and her daughter moved into the property following purchased in August 1999 and continued to reside in that property until November 2002. The property was then tenanted. The applicant asserts that she undertook various maintenance and repair work in relation to this property following its purchase.
The applicant asserts that from purchase until May 2002 the respondent would visit the property for dinner with the applicant. She asserts that since May 2002 she the applicant had been living together in a de facto relationship. The respondent acknowledges he commenced living with the applicant in 2002.
The mortgage on the [A] property was discharged in about 2006 or 2007.
In November 2002 the parties purchased [P] in Darwin for the sum of $650,000 as to 15% to the applicant and 85% to the respondent through the [P] Family Trust. The parties moved to live at [P] in November 2002 and lived there together until July 2005. The applicant asserts that she undertook nearly all the homemaker duties during this period.
The applicant worked in relation to the [P] business assisted by members of her family from time to time whilst the respondent continued his occupation as a [omitted]. The applicant acknowledges payment to her of a management salary from 2002 until 2005 and simple lump sum payments to her from the respondent thereafter.
In November 2003 the respondent transferred the sum of $103,137 to China to facilitate his company purchasing a home unit to accommodate the respondent’s mother. He continues to meet mortgage payments in regard to this property.
The [P] business was sold in July 2005. The parties returned to reside at the [A] property in Darwin.
In September 2005 the respondent purchased a home unit in [U] in Sydney for the sum of $133,000. The home unit provided accommodation for the applicant’s daughter whilst she pursued her university studies in Sydney.
The applicant moved to reside in Sydney in late January 2006. The respondent asserts that it was this event that ended their de facto relationship, telling their accountant she was leaving for good for a new life in Sydney saying that she was sorry for leaving the respondent, but that “she had a [qualification omitted] and needed to move to Sydney for [occupation omitted] with her qualifications and was grateful to the respondent and she owed him money which she would pay back when she got a job”.
The applicant in oral evidence asserted that she moved to Sydney following incidents of domestic violence. She came to Sydney for job interviews and to stay with her daughter.
The respondent remained living in the [A] property in Darwin that he regarded as his home, with members of the applicant’s family staying there from time to time over a period of years. He asserts that subsequently his actions were simply to assist the applicant financially.
The respondent asserts that the applicant provided to him a letter in January 2006. That letter comprises Exhibit H to the respondent’s affidavit. There is an issue as to when the applicant provided the letter to the respondent; she asserts that it was in December 2009 after a quarrel between them. The letter clearly acknowledges the end of the relationship between the applicant and respondent and acknowledges the monies provided by the respondent to assist the applicant’s mother but peculiarly makes no reference to the fact that, if the applicant’s assertion as to the date of the letter is correct, that the applicant continued to reside in Sydney in a property owned by them both and in respect of which the respondent was making mortgage payments.
On balance the court is satisfied that the applicant provided this letter to the respondent in January 2006.
Before the middle of 2006 the applicant forwarded to the respondent and his accountant an e-mail (Exhibit C) seeking clarification of the financial accounts of the trust that conducted the [P] business in Darwin. It appears clear from the e-mail that it was sent by the applicant after she had moved to Sydney. The applicant says in the e-mail:
“I still owe [Mr Holden] some money while I am returning him gradually, especially when I get my job I will return every cent to him. However, I prefer not to mix personal with business together, if it might be. I personally like everything clear. I would most appreciate a very clear answer to my questions. I thank [Mr Holden] for the job and the help for family and thank [name omitted] for the accounting help in the past years especially when I met difficulties.”
In mid-2006 the respondent represented to his brother that the relationship with the applicant was over and that they were now just good friends.
In July 2008 the parties purchased as tenants in common as to 32% to the applicant and 68% to the respondent, a home unit property at [H] in Sydney. The applicant contributed $100,000 to the purchase, the respondent $150,000 and the balance was funded by a mortgage. The applicant moved into the property subsequent to purchase and attended to payment of outgoings whilst the respondent paid mortgage payments as they fell due and payable. The respondent asserts that the purchase was simply an investment decision for him and advised the applicant of such by letter on 18 April 2008.
The applicant asserts that the parties in the period from 2006 to 2010 stayed together either at the [U] property, the [A] property or the [H] property every two months or so for a few days at a time. The applicant further asserts that the parties spoke by phone on an almost daily basis when they were apart. The respondent acknowledges a sexual relationship when staying at the [H] property.
In late November 2006 the applicant’s former husband Mr C arrived in Sydney from China and during this period he stayed with the applicant and the daughter at the [U] premises. The applicant acknowledges that she supported her former husband’s application for Australian residency by representing to the authorities that she and her former husband were living as man and wife in an ongoing relationship and to this effect she swore on oath a statutory declaration. Notwithstanding the applicant’s divorce from her former husband in 2003 she represented to the authorities that they were resuming their relationship which was ongoing.
The Immigration Department file is Exhibit A in the proceedings.
The applicant’s former husband left Australia on 31 December 2006 and she asserts that she has thereafter had no further contact with him.
The applicant’s former husband has made application to the authorities for a resident return visa with such application dated 1 October 2011. Previously a similar application was made by him in dated 29 November 2006 asserting that he was a member of a family of Australian citizens. Various documents were provided by the applicant’s former husband in support of his earlier application. One of those documents was his Australian taxation office refund notice dated 28 September 2006 addressed to him at the [U] premises. He further provided copies of his bank statements for the period from early 2005 until mid-2006 with some of those bank statements addressed to him at the [U] premises. He further provided various other financial documents also addressed to him at the [U] premises. The applicant as is evidenced by the documents comprised in Exhibit A provided a statutory declaration sworn by her on 5 December 2006 that solemnly declares and affirms “my relationship with Mr C… as spouse is ongoing.”
It is of note that in the period from 2006 to 2007 the parties travelled together to Victoria for a conference, travelled to New Zealand together as a couple for the purposes of the respondent’s business, attended together extended family events and celebrations, attended the Moon Festival together in 2007, together applied for travel visas to China, engaged together in relation to the purchase of the [H] property and together purchased furnishings and furniture for the property, in November 2007 attended the respondent mother’s funeral in Singapore staying together, spent Christmas 2007 in the Darwin property together in company with other family and friends, spent Christmas 2008 in Sydney together and in early 2009 hosted members of the applicant’s extended family in Sydney at the [H] property celebrating Chinese New Year together, celebrated Christmas together at the Darwin home in company with the applicant’s nephew with the applicant returning in January to celebrate Chinese New Year with the respondent which included a family dinner at the home with invited guests and family, holidayed together in Singapore in January 2010 as a couple and for various periods the respondent accommodated members of the applicant’s family in the home in Darwin. The applicant asserts that since 2006 she and the respondent have been together as husband and wife on about 30 occasions.
On 16 July 2009 the respondent wrote to the applicant informing her of his intention to return to Singapore. He in that letter said to the applicant “but don’t worry, I would still like to be a good friend and support and nurture you and [X] in many ways as I have done in the past for your family”. The respondent says that he had since 2006 endeavoured to convince the applicant that their relationship was over, he had tried to tell her many times and finally he chose to put it in writing.
She asserts that in January 2010 the parties holidayed together in Singapore and stayed together at the [A] property before the applicant returned to Sydney. After the applicant’s return to Sydney she says she wrote a letter to the respondent ending what she perceived to be their then relationship following an incident between them whilst in Singapore.
Subsequent to January 2010 it is clear that both parties regarded whatever the relationship was at that time as ended. The respondent wrote to the applicant in late January 2010 (Exhibit F) also acknowledging the end of the relationship as it was.
The applicant acknowledges that the respondent during the course of their relationship invested in various properties in respect of which she had no input.
Until January 2010 the respondent provided funds to assist the applicant’s daughter in Sydney, provided various funds to the applicant herself, paid outgoings on the [U] property, paid for the applicant’s daughter’s university fees, paid for the applicant’s Medibank health insurance, telephone bill and paid for the costs of travel for the applicant and the daughter or both of them between Darwin and Sydney during the period 2002 to 2010.
In November 2010 the respondent married and there is one child of that relationship born [in] 2011. The respondent wife and child reside in Singapore but travel to Australia periodically as he does to Singapore for the purposes of work.

The Law

If the court’s jurisdiction is to be exercised in proceedings between those who have been in a de facto relationship there are a number of thresholds in the legislation, which must be overcome. The first of these is whether there has been a de facto relationship as defined under the Family Law Act 1975.

40.Section 4AA of the Family Law Act 1975 sets out the meaning of de facto relationship as follows:
“(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a)    the duration of the relationship;
(b)    the nature and extent of their common residence;
(c)     whether a sexual relationship exists;
(d)    the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)    the ownership, use and acquisition of their property;
(f)     the degree of mutual commitment to a shared life;
(g)    whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)    the care and support of children;
(i)     the reputation and public aspects of the relationship.

(3)    No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)    A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5)    For the purposes of this Act:
(a)    a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)    a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

In Baker & Landon [2010] FMCAfam 280 Riethmuller FM considered the meaning of “de facto relationship” and said:
“11. The requirements of s.4AA, in summarised form, require a decision as to whether the parties ‘have a relationship living together on a bona fide domestic basis’. In coming to this decision the court must have regard to ‘all of the circumstances of the relationship’, which may include the factors set out in s.4AA(2). Importantly, no finding as to a particular aspect of the relationship appears to be determinative (s.4AA(3)) nor does the section attempt to prescribe the weight to be attached to any particular factor (s.4AA(4)). As a result the definition cannot be said to be closely proscribed.”

The duration of the relationship

The respondent acknowledges that a de facto relationship existed between himself and the applicant from about May 2002 until January 2006. The applicant asserts that the de facto relationship continued until the parties returned from their short holiday to Singapore in January 2010 when the applicant on 25 January 2010 received the letter dated 23 January 2010 from the respondent. It is clear on the one hand that the respondent asserts a relationship of some 3 ½ years and the applicant a relationship that comes within the definition in the Act of about 9 ½ years. It is certainly common ground that the nature and incidents of their relationship changed significantly upon the applicant moving to reside permanently in Sydney in January 2010 and the respondent remaining resident in Darwin. The nature of the relationship from January 2006 until January 2010 must be gauged by reference to the factors and considerations that follow.

The nature and extent of their common residence

It is common ground that the parties resided together in the [A] property in Darwin and thereafter at the [P] premises and following its sale returning to the [A] property until the applicant moved to Sydney in January 2006. After January 2006 it is difficult to find evidence of a common residence. Both parties concede that they stayed for short periods of time in each other’s residence and indeed holidayed on occasions together. The court is satisfied that after 2006 there was no identifiable common residence occupied by the parties save for the itinerant circumstances referred to above. There simply was no base from which the parties’ lives together emanated. The applicant lived and worked in Sydney and the respondent lived and worked in Darwin

In Moby v Schulter, [2010] FLC 923-447, Mushin J considered a number of authorities in State jurisdictions. His Honour agreed with the approach exemplified in earlier decisions in New South Wales, including Roy v Sturgeon [1986] DFC 95-031; Simonis v Perpetual Trustee Co Ltd [1987] 21 NSWLR 677 and the decision of the NSW Court of Appeal in Light v Anderson [1992] DFC 95-102. His Honour went on to say:
139. While I respectfully agree with the approach of their Honours, before the definition may be considered as constituting “a single composite expression of a comprehensive notion or concept” there are two specific elements of that definition which require individual considerations. The first of those is the concept of “a couple”. For the purposes of the definition, “a couple” is constituted by two people whether of the same or opposite sexes.
140. The second specific element is the concept of “living together”. In my view, if a couple do not live together at any time, they cannot be seen as being in a de facto relationship. However, the concept of “living together” does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full time basis. On the basis that one or both members of the couple may also be legally married or in another de facto relationship at the same time as they are in the subject relationship, it must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship. Further, there is nothing to suggest that it must be even as much as half of the time.
141. Subject to the above, the question of whether the parties were in a de facto relationship must be considered on a case-by-case basis without circumscribing any particular factor.”
This court is mindful of the subsequent observations of Murphy J. in Jonah & White [2011] FamCA 221 who said:
“48. His Honour’s approach might be seen to embrace Powell J’s approach in Simonis v Perpetual Trustee C Ltd at 685 where Powell J held that the (then) definition of “living with ... on a bona fide domestic basis” (in s 6 of the Family Provision Act 1982 (NSW)) was “a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts”.
49. In Hayes v Marquis [2008] NSWCA 10, McColl JA held that the effect of earlier decisions of the New South Wales courts, including the Court of Appeal, meant that “practically, [it is] ... necessary to consider the evidence as a whole, not under isolated headings” (citing Barnes v de Jesus [2001] NSWSC 19 at [26] per Windeyer J). Her Honour went on to hold that “... the concept of ‘living together’ will always be something different from living together as a couple, one of the critical requirements for a de facto relationship”. There, her Honour was distinguishing de facto relationship from a “close personal relationship”, an expression which is separately defined in the Property (Relationships) Act 1984 (NSW).
50. In the same case, Einstein J held (albeit in the respect of the definition of the “close personal relationship” in s 5(1)(b) of that NSW Act) that:
“166. Upon its proper construction the expression “living together” in the context of the instant legislation is to be understood as referring to the sharing of a home: that is to say to co-habit/to dwell together. The test is an objective one. It involves assessing the nature and extent of the claimed common residence. To live together requires that the two adult persons be seen as regarding the place or places in which they live as “their home”. Both of them might not always be found in that home because from time to time family or business requirements or similar may require one or both to spend some time elsewhere cf: Re Fagan deceased [1980] 5 FamLR 813 where Jacobs J observed [at 822] that “there may be states of cohabitation where (the partners) see as much of each other as they can”, to which I would add – “in the circumstances”. But the dominant parameter will be whether or not the individuals concerned may be discerned to regard the premises in question as their home and in so doing to be acting reasonable.
51. That passage was cited with approval by White J in the NSW Supreme Court in Vaughan v Hoskovich [2010] NSWSC 706. His Honour said in respect of the definition of de facto relationship within the NSW legislation that:
“What is clear from ss 4(3) is that satisfaction of the requirement that the persons live together as a couple does not require that they share a common residence on a full time basis. There are of course many examples of people who can be said to live together, although one or the other is away for long periods. A partner who takes an overseas posting, or who goes to sea in the course of his or her occupation for long periods, will not cease to live with his or her partner because of extended absences ...”
52. The approach just referred to is consistent with decisions of the Queensland Court of Appeal. (See e.g. PY v CY [2005] QCA 247; KQ v HAE [2006] QCA 489; FO v HAF [2006] QCA 555).
53. It is, however, important to bear in mind that the emphasis on common residence (whether for varying periods of time or not) is but one of the specific factors enumerated within s 4AA of the Act. The section specifically provides that no particular finding in respect of that matter (or indeed any other specified circumstance) is “to be regarded as necessary in deciding whether the persons have a de facto relationship”.
54. Nevertheless, as has been observed in respect of that specific consideration in the NSW legislation:
[50] One of the circumstances of the relationship to be taken into account under s 4(2) is para (b), namely the nature and extent of common residence. Subsection 4(3) provides that no finding in respect of any of the matters mentioned in subss (2)(a)-(i) is to be regarded as necessary for the existence of a de facto relationship. That is curious as it seems difficult to see how parties could be said to be living together as a couple if they never had a common residence. However, in Piris v Egan [2008] NSWCA 59, Campbell J said (at [146]) that:
[146] ... it should be recalled that the list of “circumstances” in s 4(2) are reminders of matters that possibly might be relevant in deciding whether two people are in a de facto relationship, but do not state its essence. The essence is to be found in the definition in s 4(1). If two people do not “live together as a couple” they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various “circumstances” listed in s 4(2).
(Vaughan v Hoskovich, above).
55. Again, the approach there exemplified can be seen to be consistent with authorities in Queensland where a very similar legislative regime has been considered. Underlying those authorities is a necessity to establish the existence of “a relationship as a couple living together on a genuine domestic basis” informed by, but not necessarily determined solely by, the individual findings with respect to the list of circumstances.
56. In KQ v HAE [2006] QCA 489; [2007] 2 Qd R 32 the Queensland Court of Appeal (McMurdo P, Keane and Holmes JJA) held in a joint judgment:
[19] These considerations all lend support to the view taken in earlier cases that a “de facto relationship” will not be established for the purposes of Pt 19 of the Property Law Act [1974] [PLA] unless it can be seen that “the parties have so merged their lives that they were, for all practical purposes, living together as a married couple. (Citing Thompson v Department of Social Welfare [1994] 2 NZLR 369 at 374; Mao v Peddley [2002] DFC 77,515 at 77, 522 and K v H-J [2006] QSC 168 at [67].)
57. The Court also held in that case:
[18] Obviously, the scope of the expression “de facto relationship” in Pt 19 of the PLA is not strictly limited by the genesis of the expression in popular speech. For example, the provisions of Pt 19 are not confined to relationships between men and women. Nevertheless, the nature of the association involved in the marriage relationship is instructive in this context. It is clear from s 32DA(4) of the Acts Interpretation Act that Pt 19 of the PLA is not concerned with the relationship between people who merely live in the same household and share living expenses; the PLA is not concerned with the relationship between friends who share a household, or with that between carer and patient. Further, the fact that two people have a sexual relationship will not suffice to establish that they are “de facto partners”. This is clearly so, by reason of the fundamental requirement that the parties must be “living together as a couple on a genuine domestic basis”.
...
[20] It may also be accepted that a continuing cohabitation in a common residence is not necessary to establish the continuation of a “de facto relationship”, at least where the parties have lived together and have not effected a permanent separation. Nevertheless, the definition of “de facto relationship” suggests that, usually, the parties should have, at some stage, been “living together as a couple on a genuine domestic basis”. The fact that the parties have never lived together in a common abode must be acknowledged to be an indicator that they have not “lived together as a couple on a genuine domestic basis”. This indication will be especially significant where the parties have not shared the common burden of maintaining a household. It would be a wholly exceptional case in which one could conclude that a man and a woman, who have never lived together as husband and wife in a common residence, and who have never made provision for their mutual support, have been “living together as a couple on a genuine domestic basis”. That conclusion is not justified by the mere circumstance that the parties, or one of them, at some stage, intended eventually to marry. Such a case is one where friendship, or even courtship, has not matured into the commitment whereby the parties have so merged their lives that they were, for all practical purposes, living together as a married couple.
58. It is in my opinion instructive that the Commonwealth legislature did not provide for relief of the type contemplated by Part VIIIAB of the Act in circumstances where one party has, by their words or actions, provided care, love or support to another or, indeed, in circumstances where one party has induced in the other an expectation of a relationship of greater commitment than that which transpired. Rather, the legislature has made provision for that relief upon satisfaction of the jurisdictional fact that a relationship of a particular, statutorily-defined, type exists.
59. In that respect it seems to me also instructive that the Commonwealth legislature did not provide for relief of that type in circumstances where two people were parties to, for example, a “domestic relationship”, or, as in New South Wales, a “close personal relationship” but, rather, only where parties were in a “de facto relationship” as defined.
60. In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
61. Differences in nomenclature tend to confuse the picture rather than illuminate it. For example, counsel for the applicant submitted – in my view correctly – that a relationship which one party regards as “an affair” might in fact be a de facto relationship as defined. So, too, a woman who might be described as “a kept woman” (an expression accepted by the respondent upon suggestion from counsel for the applicant) might, similarly, describe one party’s perception of the relationship but, when all factors and the circumstances are considered, the relationship might nevertheless meet the definition of a “de facto relationship”.
His Honours observations met with the approval of the Full Court in Ricci & Jones [2011] FamCAFC 222.

Whether a sexual relationship exists

It is common ground that on the occasions over the years since 2006 that the parties have been together there was and subsisted a sexual relationship between them. The respondent in his 2010 letter to the applicant refers to this circumstance. However the relevance of this circumstance must be tempered by fractured nature of the relationship in terms of time and distance.

The degree of financial dependence or interdependence, and any arrangements for financial support, between them

It is clear from the evidence that the circumstances of financial dependence or interdependence really flowed only one-way. That is from the respondent to the applicant. After 2006 the respondent afforded to the applicant and her daughter the continuing occupation of his [U] home unit in Sydney. There is little dispute that he paid substantially the outgoings in relation to the property and mortgage payments. Subsequent to the purchase of the [H] property by the applicant and respondent as tenants in common in shares that reflected approximately their respective capital contributions he once again has continued to meet until more recently significant mortgage payments in relation to that property and provided to the applicant some financial assistance from time to time. Otherwise the parties have led completely separate financial lives, particularly the respondent who has invested in various properties on his own account over the years without regard to the applicant.

The ownership, use and acquisition of their property

Facts pertaining to this consideration are referred to above. There is no doubt that prior to 2006 the parties had jointly acquired the [A] property in Darwin albeit in disproportionate shares reflecting to some extent their contributions and later on a similar basis acquired the [P] property in Darwin. Prior to their physical separation in January 2006 the Darwin [P] had been sold and the [A] property remained as the only joint interest, albeit substantially owned by the respondent. The respondent also prior to physical separation acquired in his own name the [U] property for occupation by the applicant’s daughter in Sydney. It was some 2 ½ years after physical separation that the parties jointly purchased the [H] property for the accommodation of the applicant. Once again that property was purchased in disproportionate shares to reflect their respective contributions. It is of note that to fund this purchase the respondent sold a rental property already owned by him in Sydney but not occupied by the applicant. The applicant prior to purchase of [H] was residing with her daughter in the small [U] home unit but it appears had managed to save some funds that she contributed to the purchase. This is supportive of the respondent’s contention that the purchase was to facilitate the applicant having more reasonable accommodation in Sydney in a property that he saw as a good investment opportunity. The evidence is that initially the property was treated as a negative gearing investment property in the respondent’s income tax returns until his accountant became aware that it was occupied by the applicant necessitating amended returns being filed.

The degree of mutual commitment to a shared life

Both parties acknowledge that this was a factor in their relationship at least until January 2006. The applicant of course asserts that this remained a factor in their relationship notwithstanding that she lived independently from the respondent, was pursuing her own career in Sydney, was reliant upon him to provide accommodation for her and saw him intermittently for short periods. The respondent on the other hand says that he regarded Darwin as his home, visiting the applicant from time to time and she visiting him from time to time. There is little evidence of any degree of mutual commitment to a shared life together.

Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship

This is not a relevant consideration.

The care and support of children

Section 90RB of the Act provides “for the purposes of this Part, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship”. This consideration is then of no assistance in this matter.

The reputation and public aspects of the relationship

It is interesting to note that the applicant’s daughter is the goddaughter of the respondent and she refers to him as “uncle”. Apart from the physical contact between the applicant and respondent and various members of their respective extended families there is little evidence upon which to gauge otherwise the reputation and the public aspects of the relationship. The relationship can be seen after 2006 as a relationship between two people who were previously in a committed and common residence relationship to one where following their physical separation in January 2006 they remained good friends, seeing each other from time to time, the respondent providing some financial assistance, occasionally travelling together and engaging in a sexual relationship when they were together.
That circumstance is quite different to the conclusion that the court must form to be satisfied that there was in existence after 2006 a relationship that comes within that required for jurisdiction under the Act.
The court is also troubled by the representations made by the applicant on oath to the authorities in relation to her relationship with her previous husband. One can only assume that by late 2006 at least in the mind of the applicant any vestige of a relationship of any significance with the respondent had disappeared. In the event that she, as she asserts, misrepresented on oath the true circumstances of the relationship with her former husband then the court can have little regard to her evidence in these proceedings where it conflicts with that of the respondent.

Onus of Proof

“ the onus is on the applicant to prove on the balance of probabilities that a de facto relationship existed; the Court may attach whatever weight it considers appropriate. The Evidence Act 1995 (Cth) applies (see s 4(1)) and s 140 requires the Court to apply the standard of proof which is described as the balance of probabilities although it would seem that the weighting and the balancing task is much less formal than in other civil proceedings. …..s 4AA(4) does not ameliorate the requirement for the applicant to prove her case on that transparent standard” (see Taisha & Peng and Anor [2012] FamCA 385 Cronin J. at [11]).
Overall the court is not satisfied that the parties, having regard to all the circumstances of their relationship, had a relationship as a couple living together on a genuine domestic basis after January 2006.
The court thus makes the following declaration:
That pursuant to s 90RD of the Act the court declares that the defacto relationship between the applicant and respondent ended in January 2006.
By reason of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 and as a result of the referring states, including New South Wales having referred to the Commonwealth jurisdiction to enact legislation to govern the provision of maintenance and/or the division of property between the parties to a de facto relationship after the breakdown of their de facto relationship, the Federal and Family Courts were empowered to determine such issues from 1 March 2009. This court has jurisdiction over such relationships where separation occurred on or after that date.

This court thus has no jurisdiction to entertain the applicant’s present application.
The court further orders:
That the application filed by the applicant on the 24 January 2012 as amended be dismissed.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Foster FM

Associate:

Date: 13/9/2012